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Staying in the family home in the short term

This page explains whether or not your husband, wife or partner can evict you from your home when your relationship breaks down. It also helps you work out whether you have the right to return to your home after you have left, and looks at how the courts can resolve disputes over who will stay in the home in the short term.

This page only offers an introductory guide to the law. Remember, legal action can be expensive and upsetting, so it's usually best to try and resolve things between yourselves before resorting to the courts. Or, you could try mediation.

Can my partner throw me out of our home if we split up?

This depends on:

I'm married/I'm in a civil partnership/I own our home/I live with my partner and have occupancy rights granted

If any of these situations applies to you, you have strong rights to stay in the family home and your partner would need to get a court order (such as an exclusion order) before they can make you leave. They can't just throw you out.

If they try to force you out, for example, by making your life so miserable that you have no choice but to go, this is illegal eviction. Illegal eviction is a criminal offence, and you can report your partner to the police. In addition, you may be able to take out an interdict, a non-harassment order or another type of court order against them to prevent them acting in this way.

My partner owns the home and I don't have occupancy rights granted

In this case your partner will be able to evict you without a court order if they give you reasonable notice. Once your partner has withdrawn their permission for you to share their home, you will no longer have a right to remain there, and there is nothing to stop your partner changing the locks on the property when you're out so you can't get back in. Get legal advice straightaway if you're in this position.

If you refuse to leave, your partner can apply to the sheriff court for an order of ejection, or can even ask the police to help them get you out. However, the police are unlikely to want to get involved if your partner doesn't have a court order.

If you don't want to leave, you'll need to apply to the sheriff court immediately for occupancy rights to be granted. This means that you'll be applying for a court order enforcing your rights to stay (the page on resolving disputes at court has more on this).

I've moved out - can I move back in again?

I'm married or in a civil partnership

If you've left the family home (for example, if you've gone to stay in a refuge or with family and friends), you and your children have the right to move back in again.

If your partner doesn't want you back, you can go to the court for an order to enforce your occupancy rights and allow you to move back in. However, you do have the right to force your way back in without a court order. If you need to do this (for example, to collect furniture or belongings) it's best to ask the police to come with you, to prevent things getting out of hand.

If you moved out on or after 4 May 2006 your right to move back in will end after two years. This will only happen if, during those two years, you haven't lived with your spouse/civil partner or stayed in the family home.

You will also lose your occupancy rights if:

  • you give up ('renounce') your rights to live in the family home, or
  • you get divorced or have your civil partnership dissolved.

If you moved out before 4 May 2006 then you will have a right to return to the family home until you get a divorce/have your civil partnership dissolved or you renounce your rights.

I have occupancy rights

If you're not married or in a civil partnership but you have occupancy rights granted by the court, you can return to the family home while those rights last. Your rights last as long as is specified in the court order (up to six months). You can apply to the court to renew your occupancy rights once they have expired. You have to remember to do this - you won't get a reminder.

If your partner doesn't want you to return to the family home, you can ask the court for an order to enforce your occupancy rights and allow you to move back in.

I own or jointly own the home

In this case, you will have a right to return home whenever you like, provided your spouse or partner has not taken out an exclusion order or other court order to prevent you from doing this. You may be able to get an exclusion order changed or recalled - get advice from a solicitor if you are in this situation.

How can the court help us resolve our situation?

If you and your spouse or partner are unable to reach an agreement about who should stay in the home in the short term, you can apply to the sheriff court to make this decision for you. You can also apply for court orders to restrict or regulate your spouse or partner's use of your home until you have reached a final decision. These may be useful if you have no choice but to remain living in the same property until your situation is resolved, for example, until your home is sold .

The pages on taking legal action and resolving disputes have more information on getting court orders.

Scotland map Housing laws differ between Scotland and England.
This content applies to Scotland only.
Get advice if you're in England

The important points

  • If you are married, in a civil partnership, own your home, live with you partner and have occupancy rights, then you have strong rights to stay in the family home and your partner would need to get a court order before they can make you leave.
  • If your partner owns the home and you don't have occupancy rights, then your partner will be able to evict you without a court order if they give you reasonable notice.
  • If you and your spouse or partner are unable to reach an agreement about who should stay in the home in the short term, you can apply to the sheriff court to make this decision for you

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